Unfair Dismisal/Sexual Harassment -Case of Kiiru v Ministry of Lands & Settlement & another (Cause 1560 of 2018) [2024] KEELRC 2824 (KLR)

Background:

The Claimant was appointed to the Ministry of Lands on 28^th December, 1981, as a Cartographer. On 21^st November, 1997, she was suspended for “recent indiscipline attitude” without particulars on the allegation. The charges against her reopened allegations of absenteeism from 1993, a matter already resolved. She was reinstated on 14^th July 1998 but unable to start work immediately due to her illness. Upon her return, she was informed that she could not resume work and later received a letter from the Principal Secretary (PS) dated 22^nd October 1998 stating that her whereabouts were unknown yet she had written to the PS. She was charged with absenteeism, but after responding to the charges, her salary was reinstated in March 1999, though it was never paid. The PS suspended the Claimant on 5^th May, 1999, for refusing to apologize to her supervisor over grievances she raised regarding sexual harassment. Despite having previously resolved the allegations of absenteeism and misconduct from 1991 to 1997, the PS reopened these charges. Her appeals were unsuccessful and she was ultimately dismissed on 16^th November, 1999 on grounds of gross misconduct. She filed the present suit alleging unlawful and unfair termination.

Issues for analysis:

1. Whether the Claimant’s dismissal was lawful, fair, and followed the due procedure.
2. Remedies available to the Claimant

Court's Determination:

On the first issue, the Respondents claimed that the Claimant’s dismissal was justified due to misconduct, including failure to comply with instructions, making unsubstantiated allegations, and failing to address previous charges of absenteeism. They also claimed that due process was followed in handling the Claimant’s case. However, the Court found that the disciplinary process was procedurally unfair since the interdiction lasted nine months, which exceeded the prescribed time frame. Furthermore, the interdiction was related to allegations of absenteeism, lateness and hostility towards colleagues, which had been previously considered and resolved. The Claimant was later suspended on May 5, 1999, for failing to apologize for allegations of sexual harassment against her supervisor made in her letter dated 8^th April 1999. 

The Court also found that the disciplinary process was unfair because the Respondent reopened previously resolved matters, leading to double jeopardy. The Court noted that the Claimant's grievance against her supervisor regarding sexual harassment, was not properly investigated. Instead of addressing the grievance, the PS directed the Claimant to apologize, without a formal inquiry into the claims. The dismissal letter cited gross misconduct but failed to provide specific details. Testimonies confirmed that the dismissal was based on the Claimant’s grievance rather than on legitimate misconduct.

Consequently, the Court held that the dismissal was unfair, unlawful and based upon her making of a well-founded grievance against her supervisor alleging sexual advances or harassment.

On the second issue, the Court stated that at the time of the Claimant’s dismissal, the Employment Act was not in force and compensation for unfair termination under section 12 of the Act would not be available. Based on the law prevailing at the time, the Court found the Claimant's dismissal amounted to breach of contract and that she ought to be compensated as if she had continued working and retired honourably in December 2021. 

As a result, judgment was entered for the Claimant against the Respondents for payment of Kshs. 7, 462, 866.

Conclusion 

This case underscores the importance of proper handling of sexual harassment complaints and adherence to due process in safeguarding employees' rights.

Disciplinary Proceedings - Case of Jason v Bobmil Industries Ltd (Cause 409 of 2019) [2024] KEELRC 2504 (KLR)

Background

In Jason v Bobmil Industries Ltd [2024] KEELRC 2504 (KLR), the Respondent’s witness testified that the Claimant was not subjected to a disciplinary process due to the intimidating circumstances surrounding his status as a licensed gun holder. 

The witness alleged that the Claimant frequently carried his firearm into the Respondent's premises and displayed it in an intimidating manner, including placing the gun on the table during discussions, creating an atmosphere of fear. The witness also stated that no formal grievance was reported to management regarding this behaviour. 

In his defence, the Claimant testified that he was specifically hired because he was a gun holder and that during his recruitment interview, he was instructed to always report for duty with his firearm.

This assertion was not rebutted by the Respondent during the proceedings. 

The Court's Determination:

The court found that the Respondent had failed to undertake a proper disciplinary process concerning the allegations of lateness, absenteeism, or intimidating conduct as a gun holder. 

Furthermore, the court noted that the termination letter issued to the Claimant did not reference intimidation as a reason for the dismissal. 

As a result, the Respondent could not rely on this claim to justify bypassing the disciplinary process. 

The court concluded that the Respondent’s failure to address the alleged misconduct through established disciplinary procedures rendered the termination procedurally unfair.

Read Full Case Here

Insubordination - Case Law Review: Kodi v Safarilink Limited [2024] KEELRC 2348 (KLR)

Background:

On insubordination, in the case of  Kodi v Safarilink Limited, the Claimant was accused of failing to report to work when her presence was required due to increased workload caused by the COVID-19 pandemic. 

Despite initially agreeing to come in, she ultimately did not report to duty and failed to communicate her absence. 

In her response, the Claimant stated that she was called in on a weekend, which was her scheduled off-duty period. 

She admitted to being aware of the need to report but chose not to do so as she was intoxicated and wanted to avoid violating the Respondent’s policy against intoxication.

Analysis:

The court noted that off days are mutually agreed periods when an employee is not expected at work. If an employee is asked to work on an off day but has prior commitments, communicating this is necessary so that alternative arrangements can be made. 

Court's Holding:

In this case, the court held that, although the Claimant could not be faulted for beginning her weekend early, she should have confirmed her unavailability when asked to report. Once she agreed to come in, the argument of being off-duty was no longer valid.

 

Full case available  Here

Tax Alert: The Supreme Court overturns the Finance Act, 2023

Introduction;

The Supreme Court of Kenya upheld the Finance Act, 2023, on Tuesday 29th October 2024, overturning a decision by the Court of Appeal that nullified the legislation on constitutional grounds. The Judgment addressed several issues related to the legislative process and specific provisions of the Act, ultimately setting aside the Court of Appeal’s (“CoA”) decision that had declared the entire Act unconstitutional.

The seven-judge bench, led by Chief Justice Martha Koome, ruled that Parliament adhered to public participation requirements when drafting the Finance Bill.

This judgment follows the CoA’s earlier ruling, which had deemed the Act unconstitutional due to insufficient public participation.

While the apex court ruling represents a setback for Kenyans facing increased taxation, it is a victory for the government in its effort to raise revenue through new tax measures. 

Background;

The Act, was assented to on 26 June 2023, and subsequently faced multiple constitutional petitions at the High Court (“HC”). 

At the High Court, the petitioners argued among other grounds that the Act required the concurrence of the Senate and further that there was no adequate public participation in the enactment of the Act. In its judgment, the High Court delivered Judgement and declared certain provisions of the Act unconstitutional and upheld the rest.

The Government appealed to the CoA whereby the Appeals croassappeals were consolidated. Upon hearing the parties, the CoA in its Judgement declared the entire Act unconstitutional, on the basis that the process of enacting the Act was procedurally flawed and that the principles of public participation were not adhered to in the enactment of the Act.

The Government the appealed to the Supreme Court of Kenya being the apex court for a final determination of the dispute.

Court's Holding (Supreme Court);

 "The preliminary objection on this Court’s jurisdiction is overruled. We hereby set aside the Court of Appeal’s finding declaring the entire Finance Act, 2023 unconstitutional," said the Supreme Court's ruling in a significant win for the government.

 Key implications of the decision;

The decision confirms the legality of Finance Act, 2023, which has been a focal point of national debate and public demonstrations.

Finance Act, 2023, which proposed tax increases on essential items like fuel to expand the government's revenue base, had faced widespread public backlash since its inception, culminating in nationwide protests.

The Finance Act 2023, signed into law by President William Ruto in June 2023, introduced a Housing Levy requiring a 1.5 percent contribution from employees, matched by employers, to fund affordable housing.

It also raised the value-added tax (VAT) on fuel from 8 percent to 16 percent, contributing to a rise in fuel prices, among other changes.

COVID-19 Update: What is a reasonable care for Employees Working from Home or Remotely?

By Messrs, B.N., O.G., and I.O.

In as much as the employers have the managerial discretion to undertake various strategies in ensuring the sustainability of their various businesses during this pandemic, it is highly expected that the rights of the employees are upheld at all times pursuant to Article 41 of the Constitution of Kenya including other reasonable enabling laws. The reasonable care for employees is interpreted as the specific duties and responsibilities by the employers to ensure the safety of its employees. 

However, the Employment Act, 2007 requires that the employment contracts state the place of work (see section 10(2) (f)) and it is highly likely that the majority of the employment contracts have such a provision. In situations where the employee has opted to work from home or remotely from work due to pandemics such as COVID19 outbreak, they are highly likely to be in breach of their contract and legal provisions as set out as a requirement by the employment Act not unless it is a result of the agreement between the employer and the employee. 

The duties that an employer has under the OSHA would extend to circumstances where such an employee renders services to the Company remotely from home. For purposes of the OSHA, the employee’s ‘workplace’ would be her/his home. Ordinarily, how the employer will ensure a healthy and safe working environment would depend on the sort of work that is being carried out from home and what equipment and assistance may need to be provided to employees by their employer. The specific duties of the employers are to ensure the safety, health, and welfare of employees at all times within the workplace (see section 6 of the Occupational Safety and Health Act).

The key duties applying to the working activity and workspace includes such as management and conducting all the work activities aimed at ensuring the employee has a reasonably practicable to uphold their safety, health and welfare, provision of safe systems of work that have been planned, organized and maintained; provision of assessment of risks and implementation of appropriate control measures and ensuring there are plans in case of any emergencies.

Additionally, the Responsibility for the health and safety at work pursuant to the OSHA 2007 rests with the employer notwithstanding whether they employee carries his/her duties from office or at home as agreed between themselves as noted above. It is therefore upon the employer to consult their employees and assure themselves that the employee is aware of the risks associated with working from home or remotely; that the assigned work activity or temporary space of work is suitable; that there is provided suitable equipment enabling work to be done; and that there are pre-arranged means of contact.

In addition to the OSHA, the Employment Act requires an employer to regulate the working time of its employees with due regard to their health and safety and to their family responsibilities. Employers are required to, as far as is reasonably practicable, provide a workplace that is free of risk to the health and safety of its employees and that this requirement would persist during the COVID-19 pandemic and the Lockdown subject, of course, to an employee actually working remotely from home. In the case of distant work, the employer shall consider suitable working time arrangements, special provisions concerning assignment and delivery of work, reporting requirements. Moreover, the employer is responsible for healthy and safe working conditions. It shall be considered carefully how to limit the options for the employee to change his working place at the employee’s discretion.

In the normal course, an employer may require their employees to sign an indemnity form in which they warrant, among other things, that their home office is safe. While the present circumstances are extraordinary, it would probably be appropriate for an employer to ask its employees to sign and return a warranty and indemnity form in relation to working remotely from home. 

However, it would probably also be prudent to take further steps under Section 6 (2)(c) of the OSHA to, inter alia, meets the requirement of “the provision of such information, instruction, training, and supervision as is necessary to ensure the safety and health at work of every person employed”, through appropriate information and instructions being given to employees working from home on how to avoid or limit the risks to their health and safety in the home working environment.

The employer is further responsible for providing the technical means for distant work and for ensuring that the employer’s property (i.e. the equipment provided to employees) is well preserved.

#KeepSafe

#CovidIsReal

THE EMPLOYMENT AND LABOUR RELATIONS COURT HAS JURISDICTION OVER FOREIGN COMPANIES (Case Review: Meta Platforms, Inc & another v Motaung & another; Kenya National Humans Rights Equality Commission & 9 others (Interested Parties) [2023] KECA 996 (KLR)

Background/Facts:

This decision in the stemmed from rulings delivered on 6th February 2023 and 20th April 2023 in Nairobi ELRC Petition E071 of 2022 and Nairobi ELRC Petition E052 of 2023, respectively. In ELRC Petition No. E071 of 2022, Daniel Motaung, representing former and current Facebook content moderators, filed a suit against Samasource Kenya EPZ Ltd (operating as Sama), Meta Platforms Inc., and Meta Platforms Ireland. Motaung claimed poor working conditions, unfair labor practices, and violations of fundamental rights. Samasource contested the case, arguing that Motaung, being a foreign national not residing in Kenya, lacked the legal standing to file the petition. 

 Furthermore, they contended that Meta was not subject to the court’s jurisdiction as it is a foreign corporation with no operations in Kenya. Meta Platforms Inc. and Meta Platforms Ireland sought dismissal of the case on jurisdictional grounds, but the court, ruled in favour of its jurisdiction and ordered Motaung to properly serve both Meta entities. Dissatisfied with this decision, Meta appealed, challenging the court's jurisdiction.

Reasoning; 

In ELRC Petition No. E052 of 2023, several former employees filed a suit against Meta, Samasource, and Majorel Kenya, claiming their rights had been violated due to an unjustified redundancy process. They also filed an application where they sought to effect service upon Meta Platforms Inc & Meta Platforms Ireland Limited in their principal offices situated in USA, wherein the court granted them ex parte orders maintaining the status quo pending hearing and determination of the application. In response, Meta and its affiliates sought to have the case struck out, arguing that the court lacked jurisdiction. The court’s ruling on determined that the nature and extent of Meta’s liability, including violations occurring virtually within Kenya’s jurisdiction, would be examined. Meta, once again, appealed this decision on jurisdictional grounds.

In the Court of Appeal,  the appellants argued that the Employment and Labour Relations Court (ELRC) could not assume jurisdiction over Meta because proper service had not been effected as required under Kenyan law, and even when service was allowed, the foreign defendant had a right to challenge jurisdiction. The 1st Respondent countered that the issue was now moot since service had been completed, and Meta was actively trading in Kenya through platforms like Facebook Pay and Facebook Marketplace, paying taxes to the Kenyan government. The appellants, however, insisted that Kenyan laws cannot be applied to foreign corporations unless there is evidence of them trading in the country, and enforcing such laws would breach the sovereignty of their home jurisdiction.

The two appeals were determined together.

Issues for determination:

The appeals centered on:

i.  whether the ELRC had jurisdiction over Meta, given the company’s foreign status and; 

ii. the nature of its operations in Kenya.

Analysis:

Civil Appeal No. 232 of 2023 - On the question of jurisdiction, the Court of Appeal found that the Appellants did not advance any arguments that contested the court’s power to hear and determine the matter, which is the ultimate definition of jurisdiction. They only stated that they are foreign companies who must not be subjected to the Constitution or laws of Kenya, hence ELRC has no jurisdiction over them. The Court of Appeal considered the 1st Respondents arguments that the alleged violations occurred in Kenya, he was employed by the Appellants as a content moderator and the Appellants have a virtual and physical presence in Kenya. The Court of Appeal found that all these arguments that were advanced by parties were issues of fact which could not be determined in an interlocutory application but were meant to be determined in a full hearing. Consequently, the question of jurisdiction that had been put forward by the Appellants, fails.

Civil Appeal No. 445 of 2023 - Here, the Appellants claimed that because there was no employer- employee relationship between them and the 3rd to 186th Respondents and that they were foreign companies, the ELRC cannot assume jurisdiction. The Court of Appeal found that there was no improper exercise of jurisdiction or misdirection by the ELRC.

Court’s Holding/Conclusion:

The Court of Appeal found that the ELRC indeed has the proper jurisdiction over foreign companies in view of the fact that the Respondents' rights were under threat and as such, the orders issued to maintain status quo were valid to the extent of preventing further infringement of the said rights. Additionally, it found no merit in both appeals and dismissed them with costs to the respondents.

Navigating Compliance in Company Name Registrations in Kenya (Case Law: HCCOMMM NO. E144 OF 2021 - Buupass Kenya Limited v Buspass Kenya Limited; Registrar of Companies (Interested Party) [2024] KEHC 9257 (KLR))

Introduction

The recent ruling in the High Court of Kenya at Nairobi in the case brought to light a critical issue in corporate law: the registration of companies with similar names and its impact on existing trademarks. This ruling serves as a crucial reminder for businesses to conduct thorough legal due diligence before selecting a name and further underscores the importance of conducting thorough trademark searches and considering potential conflicts before reserving a company name and registering an entity in Kenya.

In this case, Buupass Kenya Limited (the Plaintiff), a company registered on June 29, 2017, and the registered absolute proprietor of the Trade Mark number 97821 (Part A) for the word and device BuuPass raised concerns against Buspass Kenya Limited (the Defendant) which was registered on November 27, 2020, regarding the potential for confusion in the marketplace due to the similarity of their names.

Court’s Findings and Ruling

1. The name "Buspass" is not only similar in meaning to "Buupass," but it is also phonetically and visually alike, making it strikingly similar to the plaintiff’s trademark, which is likely to deceive or cause confusion in trade, thereby constituting an infringement of the plaintiff’s trademark.

2. This case represents a classic example of passing off, as the Defendant is portraying its services as those of the Plaintiff; the Defendant’s business name is indistinguishable from the Plaintiff’s trademark, making it likely that an average customer would not be able to differentiate between the two, especially since the Plaintiff's change of name did not alter its business model and it continues to operate in the same line of business as when it was known as Magic Bus Ticketing Kenya Limited, meaning that any goodwill or exposure associated with that name is also tied to Buupass Kenya Ltd.

3. The Defendant, Buspass Kenya Limited, was ordered to change its name within 30 days and all its directors and employees were barred from infringing on or passing off Buupass’s intellectual property, including the use of any attributes or designs of trade that were identical or strikingly similar to those of Buupass.

4. An accountant be appointed by the chairperson of the Institute of Certified Public Accountants of Kenya (ICPAK) to establish profits made by Buspass in its use of the trade name Buspass and the Plaintiff’s trademark Buupass, and for passing off the plaintiff’s goodwill and services. 

Credits: N.K.

Gratuity (Case Law - Muchiri v Security Guards Services Limited (Employment and Labour Relations Appeal E108 of 2021) [2024] KEELRC 1807 (KLR))

On gratuity, in Muchiri v Security Guards Services Limited (Employment and Labour Relations Appeal E108 of 2021) [2024] KEELRC 1807 (KLR) (8 July 2024) (Judgment), the Appellant argued that the trial court erred in denying him service gratuity on the basis of his pay slip which indicated contributions to the National Social Security Fund (NSSF), while the Regulation of Wages (Protective Security Services Order) stipulates that employees in the security services industry are entitled to gratuity. 

The appellate court reviewed the purpose of Section 35(6) of the Employment Act, which excludes employees who contribute to the NSSF from receiving service pay. This provision aims to prevent situations where an employee might receive what appears to be double compensation. 

The court ruled that requiring an employer to pay gratuity not provided in the employment contract when they are already contributing to the NSSF on behalf of the employee would be unreasonable. 

Since the Respondent was paying NSSF contributions for the Appellant, the court determined that the Appellant was not entitled to service gratuity by virtue of the Order.

Read Full Case Law

Compensation for unfair termination: The case of Khamala v Robinson Security Ltd (Appeal E024 of 2023) [2024] KEELRC 2076 (KLR)

Court: Employment and Labour Relations Court (Appellate Jurisdiction)

Date: 6 August 2024
Case Number: Appeal E024 of 2023
Citation: [2024] KEELRC 2076 (KLR)

Background

Mr. Khamala (the Appellant) was employed by Robinson Security Ltd. The Appellant's employment was terminated, and he claimed that the termination was unfair. He appealed the decision of the lower court that had dismissed his claim and upheld the termination as justified. The central issue on appeal was whether the termination was unfair and whether the Appellant was entitled to compensation under the Employment Act.

Mr. Khamala, the Appellant, was employed by Robinson Security Ltd. His employment was terminated, and he subsequently filed a claim alleging unfair dismissal. While the Appellant argued that his termination was unjustified, the trial court found in favor of the Respondent, ruling that the dismissal was fair.

On appeal, the Appellant contested the decision, asserting that the termination was indeed unfair. He further sought compensation for the loss of income he claimed to have incurred as a result of the dismissal. However, the appellate court found that while the dismissal was unfair, the Appellant’s actions after the termination—specifically his ability to secure alternative employment almost immediately—significantly impacted the court’s decision regarding compensation.

Issue

The key issue in this case was whether the termination was unfair, and if so, whether the Appellant was entitled to compensation, taking into consideration his efforts to mitigate the loss.

Simply put, the key legal issues raised in this case were:

• Whether the termination of the Appellant was unfair.
• Whether the Appellant was entitled to compensation for the unfair termination, considering the fact that he secured alternative employment quickly.

Held

The appellate court held that the termination was unfair, overturning the trial court's decision. However, the court declined to award compensation to the Appellant. The court noted that the Appellant had successfully mitigated his loss by securing new employment just one day after his termination from the Respondent.

Legal Principles and Reasoning

1. Unfair Termination: The court affirmed the trial court's finding that the termination was indeed unfair, albeit the Respondent had provided reasons for the dismissal. However, in its analysis, the appellate court focused on the fairness of the procedure and the substantive justification for dismissal.

2. Mitigation of Loss: The court relied heavily on Section 49(4)(f) and (g) of the Employment Act, which provides that when determining compensation for unfair termination, the court must consider the likelihood of the employee securing comparable or suitable employment with another employer. Additionally, the court must assess the employee's efforts in mitigating the loss.

   • Section 49(4)(f) requires the court to take into account the opportunity the employee had to secure alternative employment.

   • Section 49(4)(g) requires the court to consider the employee’s actions in mitigating the loss resulting from the unfair termination.

3. Compensation Decision: In this case, the court emphasized the Appellant's quick re-employment, securing a job only a day after his termination. The court concluded that, given the Appellant's prompt action to mitigate his loss, compensation was not warranted. This ruling underscores the importance of an employee’s responsibility to minimize the impact of an unfair termination.

Significance

• Mitigation of Loss: This case underscores the principle that an employee’s failure to mitigate losses may limit their entitlement to compensation. Courts will likely take a more cautious approach to awarding damages where there is evidence that the employee has quickly found alternative employment.

• Judicial Discretion in Compensation: The case highlights the discretionary nature of compensation in unfair termination claims. Courts are not bound to award compensation even when a termination is found to be unfair. The court’s decision is influenced by factors such as the employee’s conduct post-termination and their ability to secure alternative employment.

• Section 49(4) of the Employment Act: This case offers valuable guidance on how Section 49(4)(f) and (g) of the Employment Act is applied by the courts in determining whether to grant compensation following an unfair termination.

Conclusion

The appellate court’s decision in Khamala v Robinson Security Ltd serves as an important reminder of the obligation employees have to mitigate their losses after an unfair termination. While the Appellant was found to have been unfairly dismissed, the court did not grant compensation due to his swift re-employment. This ruling reinforces the principle of mitigating loss and the court’s discretionary power in awarding compensation.

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Locus classicus on preliminary objections - The Case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696

 In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, the locus classicus on preliminary objections in this region, Law JA stated:

 

So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.

 

For a preliminary objection to succeed the following tests ought to be satisfied:

• Firstly, it should raise a pure point of law;
• secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and
• finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

The Disciplinary process : Seii v LVCT Health (Cause 1452 of 2017) [2024]

Background:

On disciplinary proceedings, in the above cited case, the Claimant alleged that procedural fairness was absent in the termination of her employment because her request to call an external witness was denied when the Executive Director ruled that the disciplinary process was an internal process and as such an external witness could not be allowed.

In the case, the Employment and Labour Relations Court found that the claimant's dismissal was unfair due to procedural flaws, notably the denial of her right to call an external witness during the disciplinary hearing.

Brief Facts of the case:

Mercy Jebet Seii, employed by LVCT Health under a two-year fixed-term contract, was demoted in April 2017 without prior notice or justification. She was informed of her demotion in a meeting on April 24, 2017, and was given until April 28, 2017, to respond. Subsequently, on May 4, 2017, she was offered a different position, which she declined. The respondent claimed that her performance was unsatisfactory, but failed to provide concrete evidence to support this assertion.

On May 19, 2017, the respondent issued a notice to show cause, detailing allegations against Seii and scheduling a disciplinary hearing. She was informed that she could be accompanied by a fellow employee during the hearing. However, when she requested to have an external witness present, the Executive Director denied this request, stating that the process was internal and external witnesses were not permitted.
 

Court's Findings:

The court emphasized the importance of procedural fairness in disciplinary proceedings, as outlined in Section 41 of the Employment Act, 2007. This section allows an employee to be accompanied by a fellow employee or a trade union representative during a disciplinary hearing. The court distinguished between the right to be accompanied and the right to call witnesses. It held that denying an employee the opportunity to call external witnesses could undermine their right to a fair hearing under Article 50 of the Constitution.

Furthermore, the court found that the respondent failed to provide sufficient evidence of Seii's alleged poor performance. No performance evaluations or reports from the donor were presented to substantiate the claims. Additionally, the respondent's witness admitted that there was no documented evidence of the claimant's attendance or performance issues.

In the court’s view, there is a difference between the accompanying person (a colleague or trade union representative) contemplated under Section 41 of the Employment Act and a person that an employee may wish to call as a witness to give evidence in support of the employee’s defence against the allegations.

An accompanying person is, in character, a representative who makes submissions on behalf of the employee and cross-examines the evidence and documents presented by the employer.

The law does not prohibit calling external witnesses, and denying the opportunity to do so can undermine an employee’s right to a fair hearing.
 

Conclusion

The court concluded that the termination of Seii's employment was both substantively and procedurally unfair. It awarded her compensation for the unfair dismissal, including notice pay, salary for days worked, and compensation for the unfair termination. However, the court declined to grant reinstatement due to the time elapsed since the dismissal and the claimant's indication that she was no longer willing to work with the respondent.

This case underscores the critical importance of adhering to fair procedures in disciplinary processes and the necessity for employers to provide clear and documented evidence when alleging poor performance.

Read Full Case Here

FORCED TRANSFER AND ARBITRARY REDUCTION IN SALARY AMOUNTS TO CONSTRUCTIVE DISMISSAL: The Case of Gatuma v Kenya Breweries Ltd & 3 others (Petition E023 of 2023)(2024)KESC 52 (KLR)(30th August 2024)(Judgement)

Brief Facts:

The case began when Symon Wairobi Gatuma, an employee of Kenya Breweries limited (KBL), filed a claim against his employer and its subsidiaries. Gatuma had been employed as a machine technician since 1986 and had later been transferred to the malting section. 

In 2003, KBL restructured its operations, transferring the malting unit to its subsidiaries, Kenya Malting Limited and East Africa Malting Limited. Gatuma and his colleagues were forced to sign new employment contracts with the subsidiaries who offered lower salaries and allowances. 

Gatuma argued that the new terms were not negotiated with the trade union, Kenya Union of Commercial Food and Allied Workers (KUCFAW) and that the transfer amounted to constructive dismissal. He therefore sought several reliefs, including compensation for unfair termination and reinstatement to his previous position.

The Industrial Court ruled in favour of Gatuma and awarded him compensation for unfair termination  in addition to reinstement to his employment position. However, KBL and its subsidiaries appealed the decision which led to a protracted legal battle that eventually reached the Supreme Court where the apex court clarified the following:

The Issues for determination:

1: Whether the forced transfer and reduction in salary amounted to constructive dismissal?

2: Whether the new employment terms imposed without proper negotiation and that violated the terms of his original contract and bargaining agreement with KUCFAW amounted to a breach of the employment contract?

3: The case also raised questions on the legality of transferring employees to subsidiaries without their consent and the implications on their employment rights.

Court’s Determination:

Issue 1: 

On the issue of whether the forced transfer and reduction in salary amounted to constructive dismissal, the court opined that Constructive dismissal occurs when an employee resigns because their employer’s behaviour has become so intolerable and has made life so difficult that the employee has no other choice but to resign. The Court held that the forced transfer and reduction in salary did indeed constitute constructive dismissal. Additionally, it emphasized the need for employers to ensure that any change in employment terms is negotiated and agreed upon by the affected employees or their representatives.

Issue 2: 

On whether the new employment terms amounted to a breach of the employment contract, the Court found that KBL and its subsidiaries had in fact breached Gatuma’s employment contract by imposing new terms without proper negotiation. It underscored the importance of adhering to collective bargaining agreements and respecting the rights of employees during corporate restructuring.

Issue 3: 

On Employee rights in Corporate Restructuring, the judgement highlighted that employees cannot be transferred to subsidiaries without their consent and any such transfer must not result in less favourable terms of employment. The Court further emphasized that employers must prioritize the welfare of their employees during restructuring processes.

On violation of Human Rights: The case of Ndegwa v Attorney General & another (Petition 121 of 2019) [2024] KEHC 9991 (KLR) ( SECTION 8(4) OF THE KENYAN CITIZEN AND IMMIGRATION ACT,2011)

SECTION 8(4) OF THE KENYAN CITIZEN AND IMMIGRATION ACT,2011 DECLARED UNCONSTITUTIONAL
 

Background: 
In the case of Ndegwa v Attorney General & another (Petition 121 of 2019) [2024] KEHC 9991 (KLR), the Honorable Justice LN Mugambi, J delivered a judgment on 12/08/2024 declaring penalties imposed under section 8(4) of the Kenya Citizen and Immigration Act,2011 for non-disclosure of dual citizenship by Kenyan citizens as unconstitutional.

The petitioner, a Kenyan citizen by birth who had acquired dual citizenship, challenged the constitutionality of Section 8(4) of the Kenya Citizenship and Immigration Act, 2011. This provision imposed criminal penalties (fine of up to KES 5 million or imprisonment for up to 3 years) on Kenyans with dual nationality who failed to disclose their second citizenship within three months of acquiring it.

Issues for Determination:

Whether Section 8(4) of the Citizenship and Immigration Act violated the Constitution.

Whether the penalties under Section 8(4) were reasonable and justifiable in a democratic society.

Arguments by the Petitioner:

The provision infringed constitutional rights under:

Article 16 – Right to Kenyan citizenship

Article 19 & 24 – Limitation of rights must be reasonable and justifiable

Article 27 – Equality and non-discrimination

Article 28 & 29 – Human dignity and freedom from arbitrary arrest

Article 39 – Freedom of movement

The penalties were excessive, arbitrary, and disproportionate to the failure to disclose.

Arguments by the Respondents:

The provision aimed to ensure national security and immigration control.

Disclosure of dual citizenship was a reasonable administrative requirement.

Court's determination/Holding:

The High Court declared Section 8(4) unconstitutional, holding that:

The provision violated multiple constitutional rights, particularly the right to citizenship and human dignity.

The penalties were disproportionate, unreasonable, and not justifiable in a democratic society.

Citizenship rights are inalienable, and the state cannot criminalize failure to report dual citizenship. 

It was unreasonable and unjustifiable limitation on the right of dual citizenship and limiting the freedom and the security of the person and freedom of movement; a clear violation of human rights.

The court found that the penalties were disproportionate and unjustifiable, constituting an unreasonable limitation on the right to dual citizenship and infringing upon personal freedoms 

Implications of the Ruling

This judgment sets a significant legal precedent, reinforcing the constitutional protection of dual citizenship in Kenya. It underscores the importance of proportionality and reasonableness in the enforcement of legal obligations. The ruling may prompt legislative reforms to align the Kenya Citizenship and Immigration Act with constitutional principles, ensuring that penalties do not unduly infringe upon individual rights . 

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